Agriculture MEC faces legal action

Sizwe Sama Yende

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Johannesburg - Environmental organisations are launching a third court challenge to stop Indian company Atha-Africa Ventures opening a new mine on a protected area in Mpumalanga.

The Centre for Environmental Rights (CER), which acts on behalf of the organisations, will now institute legal action against Vusi Shongwe, Mpumalanga’s MEC for agriculture, rural development and land and environmental affairs. This after Shongwe dismissed its appeal against the department’s granting of an environmental licence to Atha-Africa, allowing the company to establish Yzermyn coal mine in an environmentally sensitive area in Mabola, near Wakkerstroom.

In 2014, the Mpumalanga government declared Mabola a protected area under the National Environmental Management: Protected Areas Act because of its biodiversity.

The area is also a wetland and a source of three rivers – the Vaal, Tugela and Pongola rivers.

In its other two Pretoria High Court challenges, the CER has requested a review of the granting of the mining right by the department of mineral resources, as well as a review of the decision taken by the ministers of mineral resources and environmental affairs, respectively, to approve a mining right within a protected area.

Melissa Fourie, executive director of the CER, said she was not surprised by Shongwe’s decision to refuse the appeal.

“None of our submissions was taken into account when our appeal was rejected. Usually, we are not optimistic until we go to court for a review. I have no doubt that we will succeed in court,” she said.

“The fact is that these government departments are supposed to be protecting water resources, but their decisions are misaligned with their intentions.”

Bheki Nyathikazi, provincial spokesperson for the agriculture department, did not respond to written questions.

Atha-Africa has a BEE partnership with Bashubile Trust, which has as its trustees two nephews of President Jacob Zuma: Sizwe Christopher Zuma and Vincent Gezinhliziyo Zuma.

When the mining rights to the land were obtained, it had already been declared a protected area. A chief director in the environmental unit granted the environmental authorisation in 2016.

However, when the unit fell under the authority of Pinky Phosa, Mpumalanga’s then MEC for finance, economic development and environmental affairs, she refused to grant the authorisation because the area was already protected.

City Press has seen documents in which officials in the departments of environmental affairs and water and sanitation initially opposed Atha-Africa’s application to establish the mine, but later changed their minds. It was the former mineral resources minister, Ngoako Ramatlhodi, who granted the company its mining permit.

Among the reasons given by the CER to Mpumalanga’s department of agriculture, rural development, land and environmental affairs to withdraw its environmental authorisation were:

The fact that Environmental Affairs Minister Edna Molewa remained the competent authority in respect of an environmental authorisation application;

The authorisation was granted despite concerns on the part of other state organs, notably the departments of environmental affairs and of water and sanitation, which had direct regulatory interest in the project, yet were not consulted on the matter;

The Environmental Impact Assessment Report (EIAR) assessed all the activities triggered by the project, which are listed in the environmental impact assessment regulations;

The EIAR does not contain proper and objective assessments of the negative effects of the project on people’s environmental rights, and fails to identify the project’s adverse effects, which are likely to unfairly discriminate against poor rural communities who are dependent on natural resources for their livelihood; and

The EIAR did not contain all the information necessary for the competent authority to consider the application and reach a decision.

Fourie said Shongwe did not take into consideration the fact that the mine would dry up wetlands and cause acid mine drainage in the future.

She said CER had pointed out gaps in Atha-Africa’s submission, but these were not considered.

“For example, despite the fact that one of the main mitigation measures proposed by Atha-Africa is a water treatment plant, there is no reference to it in the environmental management programme for the mine, let alone sufficient information about its design or capacity, or any stipulation regarding when it must be constructed,” Fourie said.

She said Atha-Africa had provided a financial guarantee for closure costs of only R5.8 million, which was inadequate for a coal mine in any environment, but particularly so in a sensitive environment.

“Moreover, the MEC said that the mine was in line with South Africa’s invitation to Indian companies to invest in our mining sector, and that the mine would help to develop export markets for South African products and services,” said Fourie.

“However, many experts conclude that coal demand has peaked and that any further investment in coal assets now carries the risk of stranded assets and risks supply viability as an oversupply of coal will drive down prices.”